THE REPORT OF THE CAUVERY WATER DISPUTES TRIBUNAL WITH THE DECISION IN THE MATTER OF WATER DISPUTES REGARDING THE INTER-STATE RIVER CAUVERY AND THE RIVER VALLEY THEREOF BETWEEN 1. The State of Tamil Nadu 2. The State of Karnataka 3. The State of Kerala 4. The Union Territory of Pondicherry VOLUME IV PRINCIPLES OF APPORTIONMENT & ASSESSMENT OF IRRIGATED AREAS IN THE STATES OF TAMIL NADU AND KARNATAKA NEW DELHI 2007 ii Volume IV Principles of Apportionment and Assessment of Irrigated areas in the States of Tamil Nadu and Karnataka (Issues under Group III) Chapters Subject Page Nos 1 Principles of Apportionment 1 - 48 2. Development of the Irrigated Areas in the State 49 - 113 of Madras/ Tamil Nadu in the Cauvery Basin 3 Development of the Irrigated Areas in the State of 114 - 175 Mysore/Karnataka in the Cauvery Basin --------- Chapter 1 Principles of Apportionment The principles of apportionment of waters of inter-State or international rivers like principles of natural justice, have been evolved and developed by different courts from time to time in the course of more than a century while adjudicating the disputes between different States or Nations. When the development of industry and agriculture was not of high magnitude and of intensive nature, there was hardly any occasion for disputes between different States or nations through which any river used to carry water from the source to the sea. Such disputes are directly linked with the development in different spheres and demands for water from such inter-State or international rivers because of the rise in population. For centuries, the rivers are described as blessings, because, they not only provided the water for the fields for irrigation but along their course, cultural, educational, religious institutions have developed apart from they being means of navigation. It is well known that most of the ancient cities and civilizations grew up on the banks of such rivers because of the fertile land and easy communication. But during the middle of 19th century because of the industrial revolution and allied development which brought prosperity to man-kind also gave birth to conflict and dispute in respect of sharing of waters of such inter-State and international rivers. If the history of such disputes in different parts of the world is examined, it will appear that sometimes the upper riparian States have been claiming an absolute right on the flow of water which 2 used to pass through their territories. In other cases lower riparian States laid claim on the principle of right of easement saying that they have been enjoying the flow of that river for centuries and their economy is heavily dependent on such flows as such there is no question of interrupting the flow of such river by the upper riparian State. This obviously led to disputes and disharmony in respect of sharing of waters by different States and nations and courts were faced with the situation how to strike a balance keeping the interests of all the riparian States. In some cases the matter was not so difficult while arriving at a reasonable and rational basis for sharing the water of an inter-State river because of the volume of the water available in the basin. The only question which was examined and answered was as to which State should get what proportion of water out of the total yield of the river. But the situation becomes grave and acute when the demands of the different States are much higher than the total available water in the basin in question. The river Cauvery and its basin is one such case. 2. From records it shall appear that dispute about sharing of the water of river Cauvery is more than one and a half century old, details whereof have already been mentioned in earlier volumes. Before the Cauvery Fact Finding Committee, in the year 1972, claims had been made by different riparian States for 1260.34 TMC (Ref: TNDC Vol. XV, page 110), whereas the aforesaid Committee as well as this Tribunal on consideration of different material adduced before this Tribunal have estimated the average yield at 50% dependability to be at 740 TMC. 3 3. Mr Vaidyanathan, learned Senior Counsel, appearing on behalf of the State of Tamil Nadu not only purported to support the claim of Tamil Nadu on the prescriptive right over the flows of river Cauvery but also on the ground that Tamil Nadu being the lower riparian State has a right of prior appropriation of the waters of the river Cauvery even in a proceeding relating to the apportionment of the waters of the said river. In support of the right of prior use first reference was made on behalf of Tamil Nadu to the Report of the Indus Commission of the year 1942 in which the Commission has pointed out that “priority of appropriation gives superiority of right”; in general interest of the entire community inhabiting dry and arid territories; priority may usually have to be given to an earlier irrigation project over a later one. The Commission said at page 36 of its Report as under:- “the common law rule of riparian rights is completely destructive of equitable apportionment, for, under that rule, the upper owner can hardly take any share-far less his fair share-of the water of the river for purposes of irrigation. Therefore, that rule cannot be applied to an inter-State dispute even where it is recognized by both the States in their own internal disputes. The doctrine of appropriation, on the other hand, is consistent with equitable apportionment, provided that the prior appropriator is not allowed to exceed reasonable requirements. This condition is in fact part of the doctrine as enunciated by the Court in Wyoming v. Colorado [1922] (259 U.S. 419, 459) and again in Arizona v. California [1936] (298 U.S. 558, 566). Moreover, this doctrine is dictated by considerations of public interest; in arid territories where irrigation is a prime need, there would be no incentive for any 4 individual or State to spend money upon an irrigation project, unless there was some assurance that it would not be ruined by subsequent diversion higher up the river. Where, therefore, both the States in an inter-State dispute recognize the doctrine of appropriation within their own borders, the most equitable course to apply that same doctrine to the determination of the dispute.” 4. In support of the stand taken on behalf of the state of Tamil Nadu that doctrine of prior appropriation should prevail, while deciding the question of apportionment of the waters of an inter-State or international river, reference was made to the case of State of Wyoming Vs, State of Colorado 259 US 419 (1922) where it was said at page 470 that::- “The cardinal rule of the doctrine is that priority of appropriation gives superiority of right. Each of these States applies and enforces this rule in her own territory, and it is the one to which intending appropriators naturally would turn for guidance. The principle on which it proceeds is not less applicable to inter-State streams and controversies than to others. Both States pronounce the rule just and reasonable as applied to the natural conditions in that region; and to prevent any departure from it, the people of both incorporated it into their constitutions.” 5. From the aforesaid opinion expressed by the U.S. Supreme Court, it shall appear that both the States had incorporated the rule of priority of appropriation in their Constitution. Apart from that at page 470 itself it was said: “These considerations persuade us that its application to such a controversy as is here presented cannot be other than eminently just and equitable to all concerned.” 5 Thus the aforesaid judgement is of not much help to Tamil Nadu because from the facts and circumstances of that case it appears that both States had incorporated such rights of prior appropriation into their Constitutions and at the same time the Supreme Court found it eminently just and equitable to all concerned. 6. The ‘right of priority of appropriation’ is a concept different from past utilization of waters of the basin by one State or the other. The right of priority of appropriation has been granted in the western States of USA by some statutory provision including incorporation of such rights into the respective Constitution of the States. It will be appropriate to refer to the Water Law In A Nutshell third edition by David H Getches Raphel J Moses Professor of Natural Resources Law, University of Colorado School of Law Boulder, Colorado. In Chapter 3 at page 81 it has been said: “B. Development of Modern Systems The appropriation system was an expedient means to encourage development of the arid West, where much of the land is distant from streams and water is limited. It rewarded those who first risked their effort and money with security for their investments. The eight most arid states (Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming) constitutionally or statutorily repudiated riparian rights very early and adopted prior appropriation as the sole method of acquiring rights to the use of water for all beneficial purposes. In these states statutory systems have evolved to provide for 6 initiation of appropriations, establishment and enforcement of priorities, and water distribution.” Then at page 118 it has been said: “All modern appropriation systems provide that persons may object to the granting or recognition of a new right by an administrative agency or court on the ground that the right is excessive for the purposes claimed.